Well, the rule of thumb seems to be that if the petition isn’t granted in the first relisting, then the chances of a grant go way down. Our guess is that a Justice or two is writing a dissent to the denial of certiorari. At this point, that seems like the best conceivable outcome. Of course, Court could be considering a summary reversal, but that’s extremely rare.

One Response to Supreme Court Fails to Act on Oneida Land Claims Petitions

A summary reversal strikes me as a long shot (a very, very long shot), but I would love to be wrong. The re-listing raises some interesting possibilities, although none of them lead to “cert granted.” To grant review, four justices must vote in favor of the grant. Although it is not known for certain, Justice Sotomayor, as a former judge on the Second Circuit, and Justice Kagan, as the former Solicitor General for the United States, may have recused themselves from considering these petitions. Even if just one is recused, it would be unlikely that there are the necessary four votes among the remaining Justices and the Chief Justice; highly unlikely if both are recused! Although it is pure speculation, Justice Ginsberg (possibly joined by Justice Breyer) is writing a dissent to a denial of the writ of certiorari, perhaps to clarify what the Court did (and did not do) in the City of Sherrill case. If both Sotomayor and Kagan are recused, do we think there could be a third Justice joining a dissent?